PMC Partnership with Temple Law Students Provides Insight into Bail Reform through Observations of Philadelphia’s Early Bail Review Hearings
By LUCY RESAR
Published June 3, 2024.
The Philadelphia Bar Reporter
On any given day, more than 400,000 people are detained behind bars awaiting trial across the country. In Philadelphia, three in every ten arrested individuals are held pre-trial solely for their inability to afford bail. Despite the presumption of innocence, arrested individuals, a disproportionate number of whom are Black and low-income, may remain incarcerated for weeks leading up to their trial, leaving behind their spouses, children, and sources of income.
With the expansion of the Early Bail Review (“EBR”) Program in March of 2021, the Philadelphia District Attorney’s Office, the Philadelphia Department of Prisons, the First Judicial District, and the Defender Association of Philadelphia have attempted to improve bail policy and offer a second chance at pre-trial release for select defendants. The program provides a secondary bail hearing during which accused individuals have an opportunity to appear before a judge and request a bail modification. Defendants (excluding those charged with family court offenses, fugitives of justice, homicides, and nonfatal shootings) are eligible if they have been assigned a preliminary bail of $250,000 or less and have remained in detention due to an inability to pay the monetary amount. The program centers around the stated goals of safely reducing jail populations and strengthening community-based alternatives to pre-trial detention.
Despite its hopeful genesis, the EBR program carries with it the potential to perpetuate existing inequities in our justice system. Indeed, over the course of mere minutes, Early Bail Review hearings shape the lives of defendants, determining who can evade detention and return home to their families, and who will remain behind bars as they await their trial. Cognizant of this concern, Pennsylvanians for Modern Courts (“PMC”) works to increase the transparency of EBR hearings through a volunteer observation program known as PMC WatchesTM. The legal nonprofit invites concerned citizens into Philadelphia’s Municipal Court to serve as “court watchdogs,” recording observations and reflections on the Early Bail Review process. By tracking what occurs behind closed doors, the program functions to ensure that defendants are afforded respectful and fair treatment, monitor how frequently bail is adjusted, and collect data on the aspects of Early Bail Review that require additional reform.
Although PMC’s program has been around since 2018, it was recently brought into classrooms in a collaboration with Temple University Beasley School of Law. Second-year law students, Carlene Buccino and Genevieve Lamont, approached PMC in the spring of 2023 with the hope of using the existing PMC Watches program as an outlet to expose Temple students to live courtroom proceedings and inspire further engagement in bail policy. Central to their vision were two goals: (1) increase the capacity of an existing court-watch program with motivated student volunteers, and (2) complement students’ classroom instructions with first-hand observation of the criminal justice system. Beginning in August 2023, Carlene and Genevieve began recruiting individuals to join the partnership, garnering interest from over 25 law students. PMC then led a training with Carlene and Genevieve to provide students with an overview of Philadelphia’s justice system, including relevant court actors and the general timeline for the city’s typical case. The training also involved a discussion of the Pennsylvania Rules of Criminal Procedure which dictates the factors a court is legally required to consider when setting bail, as well as PMC’s previous bail report publications. Since their training date in September, Carlene, Genevieve, and a PMC staff member have accompanied groups of students to the courthouse each Friday. Over the course of the Fall, Temple students observed over 100 Early Bail Review hearings, tracking the bail assignments set by judges, along with the conduct of Defense Attorneys, District Attorney Representatives, and the judges themselves.
Generally occurring within three to five days after an initial arraignment, EBR hearings offer both the District Attorney’s office and the Defender Association an opportunity to argue in favor of particular bail conditions in a nuanced and holistic fashion. Although defendants are not physically present in the room, but rather join virtually via CCTV, they are also able to speak with judges and share valuable information about their employment status, health conditions, and familial responsibilities. Importantly, defendants also have the opportunity to meet with counsel and discuss personal circumstances and details of the alleged crime prior to their hearing – an opportunity that is not available to most individuals at the time of their preliminary arraignment. As a result, public defenders are able to offer informed and individualized bail recommendations, rather than vague and impersonal statements that are often typical of preliminary arraignments. Indeed, while preliminary arraignments tend to last for only one to two minutes, EBR hearings can frequently involve ten to fifteen minutes of discussion, allowing judges to develop a comprehensive understanding of both a defendant and the alleged crime.
Upon hearing brief arguments, a judge can then choose to grant or deny a defendant’s bail motion, and, if granted, can adjust the monetary amount set, institute non-monetary requirements such as weekly check-ins with pre-trial services in place of cash bail, or otherwise modify the original conditions set during preliminary arraignment. Notably, judges are also able to assign certain orders that are unavailable during preliminary arraignment such as house arrest without monetary bail. In the words of District Attorney, Lary Krasner, the EBR program is “an important step toward reforming the pre-trial system by shifting away from cash-based determinations toward community-based approaches that prioritize public safety and fairness.”
In overseeing PMC’s volunteer program, I have witnessed the profound impact a bail review can have on the lives of defendants. During one hearing I observed involving a drug possession charge, a Municipal Court Judge listened patiently as a Public Defender explained that the defendant, whom I will call Jane for the sake of her privacy, had struggled with drug addiction since she was first prescribed opioids after sustaining serious injuries during a car accident. The Public Defender informed the Judge that she had no ability to pay the monetary bail that had been set at $50,000 and would remain behind bars until she either accepted a plea bargain or carried her case through trial. He went on to explain that she was a mother to a young daughter and was at risk of losing her job if she remained in detention. In the gallery, three women stood up and informed the Judge that they were here to support Jane and promised to take her to an addiction treatment center upon her release. The women had tears in their eyes and shaky voices as they addressed the court room. The air around them felt heavy with their shared concern for their friend, whom they said they loved “like a sister.” The Judge listened to their words, eventually explaining, “It takes a village to get through addiction. Thank you, ladies, for being here. Why don’t you stand up and show your friend that you’re here.” The women waved to Jane through the court’s video screen, while the Judge announced that he would adjust Jane’s bail to $50,000 “Sign on Bond” with a court order to enroll in an addiction treatment center downtown. This adjustment, known colloquially as “SOB,” meant that Jane would be released from jail that very day and would be responsible for paying a monetary bail only if she failed to appear at a future court date. The Judge turned back toward Jane’s supporters and let them know that she could be picked up from the local jail around six that evening.
With the implementation of the Early Bail Review Program, Jane and hundreds of other individuals have had the chance to receive life-changing treatment, maintain their jobs, and support their families while preparing for trial – a stark contrast to the realities of pre-trial detention that often result in individuals losing their employment and being torn away from their families. The ability to return home after arrest also has important implications on the outcomes of defendants’ criminal cases. A growing body of evidence suggests that pre-trial detention can increase the probability of conviction, incarceration, and recidivism. Using a sample of criminal cases in Philadelphia and Pittsburgh, researchers have found that the assignment of monetary bail increases the likelihood that a defendant will receive a criminal conviction by 12% and increases the risk of recidivism by 6-9%. By contributing to an individual’s likelihood of returning to jail, the assignment of cash bail fails to advance public safety and disproportionately harms low-income communities that are unable to afford the monetary amounts set by judges.
The advent of the Early Bail Review Program, then, represents an important and necessary step in improving Philadelphia’s criminal justice system by allowing individuals who have been assigned monetary bail a second chance at justice. This reform, however, does not go far enough, and there remains much work to be done to ensure equitable and fair treatment for individuals accused of crimes.
Although there is relatively little information available publicly on the process of bail review and adjustment, PMC volunteers have observed and tracked the outcomes of over 100 hearings since August and will continue observing throughout the spring. Based upon our preliminary findings, there are several issues that permeate EBR hearings. Most saliently, there continues to be inconsistent ruling among judges, and the likelihood that a defendant will receive a successful bail adjustment appears to vary wildly depending on the judge residing each day. As observed by volunteers, each judge has a unique approach to EBR hearings, and defendants’ treatment differs dramatically from week to week. Disparate rulings appear to coincide with a number of factors, including the amount of time spent on each case, whether or not judges speak directly with defendants, and to what extent judges consider defendants’ personal circumstances.
While the Judge presiding over Jane’s case recognized the value in pre-trial release, many others may have denied her bail motion altogether. Indeed, among the hearings that PMC volunteers have observed, only around 50% have resulted in pre-trial release. I personally have witnessed judges who have chosen not to grant a single bail motion, while others have lowered bails for their entire docket. Without a clearly standardized procedure or reporting requirement, such variance can allow for judges’ personal biases to guide their decision-making. By volunteering with PMC, concerned citizens can maintain a watchful eye on the system of pre-trial detention and determine whether or not EBR truly is the “major step toward ending cash determinations on bail in Philadelphia” that District Attorney Krasner had hoped it would be.
If you are interested in assisting with this project or would like more information, visit www.pmconline.org, or email me directly at lresar@pmconline.org. PMC and Temple Law School plan to release a full report with our findings later this June.